Monday, 29 June 2015

Alina
Tryfonidou, Associate Professor in EU Law, School of Law, University of
Reading

Last Friday, in its much-awaited
ruling in Obergefell v. Hodges, the US Supreme
Court held that same-sex couples derive from the US Constitution the
fundamental right to marry and, for this reason, invalidated State laws which
impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully
performed in one US State must be fully recognised in all other US States. This
is, without a doubt, an historical ruling of immense symbolic and practical
importance, since it means that all
LGB US citizens are now able to marry a same-sex partner, and to be recognised,
together with the latter, as a married couple everywhere in the US.

Given that the first country in
the world that opened registered partnerships to same-sex couples was Denmark,
in 1989, and that the first country that opened marriage to same-sex couples
was the Netherlands, in 2001, one would have expected the EU to be a pioneer in
matters regarding the legal recognition of same-sex relationships. Nonetheless,
the EU’s stance on these matters and on the protection of the rights of
same-sex couples remains disappointingly aloof.

This piece will focus on same-sex
marriage and shall seek to examine the EU’s position towards a) same-sex
marriage in situations confined within a single Member State; and b) the
cross-border legal recognition of same-sex marriages (i.e. when EU citizens who
are married to a person of the same sex move to another Member State).

Can the EU Require Member States to Open Marriage to Same-Sex Couples?

The answer is simple and it is
‘no’, at least as things stand at the moment. In its judgment in Römer,
the Court stressed that ‘as European Union law stands at present, legislation
on the marital status of persons falls within the competence of the Member
States’. Moreover, the drafters of the EU
Charter of Fundamental Rights seemed to share the same view, when in the Explanations
Relating to the Charter of Fundamental Rights, it was pointed out that the
Charter Article providing the right to marry (Article 9) ‘neither prohibits nor
imposes the granting of the status of marriage to unions between people of the
same sex’.

Because matters that fall within
the ambit of family law are (usually) matters for which there is no European
consensus and for which it is believed that each Member State should be left
alone to make its own choices, family law is an area in which the EU has no
competence to legislate. Thus, it is the Member States that can decide in
situations that fall within their jurisdiction, who can marry whom, the
requirements for divorce, adoption issues, the regulation of assisted
reproduction, and any other issues falling within the ambit of family law. The
legal recognition of same-sex relationships is no exception to this, and,
hence, it is up to each Member State to decide whether it will allow in its
territory two persons of the same sex to marry. This has resulted in an EU
which is divided between the (mostly northern and western) Member States which
have opened marriage to same-sex couples,[i]
and the (mostly central and eastern) Member States which have not,[ii]
with some Member States having a constitutional ban on opening marriage to
same-sex couples.[iii]

Does the EU Require Member States to Recognise Same-Sex Marriages Lawfully
Performed In Another Member State?

Even when the EU does not have
the competence to make legislation in a certain area, this does not mean that
the Member States have a carte blanche when exercising their powers in that
field. This is because Member States must ensure that when they take action in
an area which falls to be regulated exclusively by them, they comply with their
obligations under EU law.

The next important question,
therefore, is what happens to married same-sex couples comprised of (at least)
one Union citizen, who move between Member States? If they move to a Member
State which has not opened same-sex marriage to its own nationals, do they lose
their status as a married couple and, with it, the automatic EU law right to
move and reside to the host State together as a couple? Also, once they are
within that State’s territory, are they not treated as a married couple for all
legal purposes and, hence, are they refused benefits and advantages that are
only available to married couples? Or does EU law require Member States which
do not offer the option of marriage to same-sex couples in their own territory,
to, nonetheless, recognise the status of same-sex couples who lawfully
contracted their marriage in another Member State? The answer to this question
is not entirely clear.

The reason behind this uncertainty
is that the EU legislation which makes provision for the rights (including
family reunification rights) of mobile Union citizens, uses the gender- and
sexual orientation-neutral term ‘spouse’, without clarifying that this term –
at least in this context – refers to both same-sex and opposite-sex spouses. This
has proved problematic, because it has been read by some Member States as a
licence to refuse to recognise same-sex marriages contracted in other Member
States.

More specifically, Directive
2004/38, which lays down the conditions governing the exercise of the right
of Union citizens and their family members to move and reside in the territory
of another Member State, provides, in its Article 2(2)(a), that ‘family member’
for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus,
Union citizens can be accompanied or joined by their ‘spouse’ in the host
Member State. One would have thought that a marriage – whether comprised of
persons of the same or the opposite sex – lawfully contracted in a Member State,
would be considered valid in all other Member States. After all, Recital 31 of
the Directive, provides that ‘In accordance with the prohibition of
discrimination contained in the Charter, Member States should implement this
Directive without discrimination between the beneficiaries of this Directive on
grounds such as … sexual orientation’. This, on its own, should suffice for
making it clear to the Member States that when implementing the Directive, they
must ensure that they do not act in a way which is (directly) discriminatory on
the ground of sexual orientation, and, thus, just as they recognise (all) opposite-sex
marriages lawfully performed in other Member States they must, also, recognise
(all) such same-sex marriages.

In any event, refusing to an LGB
Union citizen the right to be joined or accompanied in the host Member State by
his or her same-sex spouse can, without a doubt, constitute an obstacle to that
person’s fundamental right to move and reside in the territory of another
Member State, which stems from the free movement provisions of the FEU
Treaty. The rationale of the EU legislature – and the ECJ – for granting
family reunification rights to mobile Union citizens, has always been that the
refusal of such rights will give rise to a restriction on the exercise of free
movement rights (Singh; Carpenter; Metock). It goes without saying that
such a restriction will emerge, whether the spouse of a Union citizen is of the
same or the opposite sex and hence it appears entirely arbitrary to treat
same-sex couples differently from opposite-sex couples. Although the ECJ has
not, yet, had the opportunity to rule on whether the refusal of the host State
to admit within its territory the same-sex spouse of a mobile Union citizen
amounts to a breach of the free movement provisions of the Treaty, a case is
currently pending before it (Cocaj), where one of the
questions referred is whether ‘registered partnerships’ under Article 2(2)(b)
of Directive 2004/38, include same-sex registered partnerships.

Once it is found that the refusal
to recognise same-sex marriages contracted in other Member States amounts to an
obstacle to free movement, the onus will then fall on the recalcitrant Member
State to justify its refusal. It seems, nonetheless, that it will be unable to
rely on the public policy exception, which is one of the Treaty derogations
from the free movement provisions, and this will be so for two reasons.
Firstly, since it is engaging in a block refusal
to recognise same-sex marriages contracted elsewhere, the requirement laid down
in Article 27 of Directive 2004/38, that the measure which limits the exercise
of free movement rights is based on the personal conduct of the individual
concerned, will not be satisfied. Secondly, national measures can be justified
under the Treaty derogations only if they are compatible with fundamental human
rights protected under EU law (ERT) and, as will be explained below,
a refusal to recognise same-sex marriages contracted in other Member States
seems to amount to a breach of Article 21 of the EU Charter of Fundamental
Rights and, in particular, the prohibition of discrimination on the ground of
sexual orientation, and of the right to human dignity.

A restriction on the exercise of
free movement rights is, also, likely to emerge from the simple fact that a
same-sex married couple will lose its status or will have its status converted
into a ‘lesser’ one (namely, registered partnership), something which will,
obviously, have important (negative) implications once the couple is admitted
into the territory of the host State. Apart from the hurt feelings and
uncertainty that such a loss or ‘downgrading’ of status will cause, it shall,
also, give rise to a substantial degree of (practical) inconvenience which, in
turn, can lead to an obstacle to the exercise of free movement rights, since
the couple – although lawfully married in another Member State – will not be
entitled to benefits and advantages reserved to married couples.[iv] For
instance, hospital visitation rights or pensions, and tax, social or other
advantages, which, under national law, are only available to married couples,
will not be granted to the spouses, since in the eyes of the law of the host
State, they are not married.

Apart from Article 21 of the EU Charter
of Fundamental Rights (see the analysis below) and/or the free movement
provisions of the Treaty, some relief in this context can, also, be offered via
Directive
2000/78, which prohibits discrimination on, inter alia, the ground of
sexual orientation, in the areas of employment, occupation and vocational
training. In particular – and applying in this context the principles
established in case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who move to
another Member State where they are ‘downgraded’ to registered partners, can
rely on the Directive to require the host State to extend to them benefits
reserved to opposite-sex spouses, provided that the benefits relate to
employment, occupation or vocational training, and provided that the host State
considers the two categories of couples (opposite-sex spouses and same-sex
registered partners) to be in a comparable situation for the purposes of the
claimed benefit. Nonetheless, this is, only, a partial solution to the problem,
since it will not offer any remedy to same-sex spouses who move to Member
States which do not grant any legal recognition to same-sex relationships or
Member States which do not consider – for the specific benefit that is claimed
or more generally – opposite-sex spouses to be in a comparable situation with
same-sex registered partners. Furthermore, it will not offer any remedy in
situations where the claimed benefit or advantage does not relate to
employment, occupation or vocational training.

The refusal of the host Member
State to recognise same-sex marriages contracted in other Member States of the
EU is, also, in breach of fundamental (human) rights that are protected under
the Charter and/or as general principles of EU law.

Article 21(1) of the Charter,
provides that ‘Any discrimination based on any ground such as … sexual
orientation shall be prohibited’. Since all Member States automatically
recognise (opposite-sex) marriages contracted in other Member States, a refusal
to recognise same-sex marriages, amounts to (direct) discrimination on the
ground of sexual orientation. In its Article 51(1), the Charter provides that
its provisions are addressed ‘to the Member States only when they are
implementing Union law’. Recent ECJ rulings have interpreted this broadly, by
noting that ‘The applicability of European Union law entails applicability of
the fundamental rights guaranteed by the Charter’ (Fransson). Accordingly, it would
seem that situations which involve measures that lead to an obstacle to the
exercise of EU free movement rights can fall within the scope of the Charter.
Union citizens can, therefore, rely on Article 21 of the Charter in order to
require the Member State to which they move to recognise their same-sex
marriage and to admit them within its territory and treat them as a married
couple. Of course, Member States may wish to try to justify this instance of
differential treatment (e.g. on the need to protect the traditional notion of
marriage as a union between a man and a woman), but given that – as made clear
in the ECHR context – only ‘particularly serious reasons’ can justify
discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom;
Karner v. Austria), they will be
faced with an uphill struggle, and, in practice, it is unlikely that they will
be able to successfully rely on a justification.

Stripping a same-sex married
couple of its legal status seems to be, also, a breach of the right to human
dignity of the persons comprising it, which is protected under Article 1 of the
Charter and which is, also, a general principle of EU law.[v]
Forming intimate relationships with other individuals and choosing to formalise
such relationships is an exercise of personal autonomy, which is an aspect of
the dignity of every human being. The EU, by prohibiting discrimination on the
ground of sexual orientation, (tacitly) admits the equal worth of all
individuals irrespective of their sexual orientation, and, with it, the equal
moral worth of opposite-sex and same-sex relationships. When a Member State
refuses to give effect to the choices of individuals as regards their same-sex
relationships and the legal status attached to them, it treats such
relationships differently from opposite-sex relationships and it treats them as
inferior – and as not having the same moral worth – as the latter. Accordingly,
it fails to respect the autonomy and dignity of the individuals who have formed
and formalised such relationships. The right to human dignity appears, in fact,
to have formed the backbone of the majority Opinion in Obergefell v. Hodges which, taking as its basis that ‘the right to
personal choice regarding marriage is inherent in the concept of individual
autonomy’ and that ‘[t]here is dignity in the bond between two men or two women
who seek to marry and in their autonomy to make such profound choices’,
concluded that the US Constitution should be read as granting to same-sex
couples the fundamental right to marry in the same terms that this has always
been granted to opposite-sex couples.

Accordingly, it is obvious from
the above analysis that the refusal of the host Member State to recognise the
same-sex marriages of mobile Union citizens, amounts to an unjustified breach
of a number of fundamental rights (free movement and residence rights;
non-discrimination on the ground of sexual orientation; human dignity) that
these individuals derive from EU law.

Conclusion

As things stand, it is clear that
the EU cannot require Member States to open marriage to same-sex couples.
Nonetheless, a number of EU law provisions appear to require Member States to recognise same-sex marriages lawfully
entered into in the territory of another Member State. Accordingly, Union
citizens who move to another Member State should be allowed to be accompanied
or joined there by their same-sex spouse and
should be treated as ‘spouses’, once they are admitted into the territory of
the host State. Accordingly, the EU can no longer stand idle, turning a blind
eye to the violation by some Member States of the fundamental rights of a
segment of the EU population (i.e. the LGB population). The ECJ (when given the
opportunity) and the EU legislature, should make it clear that EU Member States
are required by EU law to recognise
the same-sex marriages of mobile Union citizens, just as they do in situations
involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement
Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual
Recognition’ (2015) Columbia Journal of
European Law (forthcoming)

C. Casonato and A. Schuster
(eds), ‘Rights on the Move: Rainbow Families in Europe: Proceedings of the
Conference: Trento, 16-17 October 2014’
available at http://eprints.biblio.unitn.it/4448/

[iv] A parallelism can be drawn here with ECJ
case-law where it was held that the refusal to recognise a surname registered
in another Member State or in accordance with the practice followed in another
Member State leads to a substantial degree of inconvenience which, in its turn,
can impede the exercise of free movement rights. See, most prominently, Case
C-148/02 Garcia Avello ECLI:EU:C:2003:539 and Case C-353/06 Grunkin and Paul ECLI:EU:C:2008:559. This parallelism was first
drawn in G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages and
Partnerships’ in D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National,
Supranational and International Jurisdictions (Springer, 2014), 376-377.

[v] This right was, also, used
by the Court (together with other the right to respect for private and family
life protected under Article 7 of the Charter and Directive 2004/83) in order
to limit the freedom of national authorities to use various practices when
seeking to establish the sexual orientation of LGB asylum-seekers – see A., B, Ccase (for comments on the
case see the piece by Steve Peers in this blog here).

Alongside ‘Grexit’ and ‘Brexit’,
the upsurge in immigration to the European Union is a further crisis which the
EU has to juggle simultaneously. The first round of EU reactions to the crisis
culminated in the emergency EU summit (‘European Council’) in April. I discussed
the results of that summit here. Subsequently, the Commission released
its ‘Agenda’ on EU migration in mid-May (see discussion here), and its
detailed proposals later that month (see discussion here). Last week the
European Council discussed immigration issues again, and came to a number of
conclusions. This blog post sets out those conclusions, with my comments
annotated. (I have left out the third part of the conclusions, which vaguely
promise more cooperation with third countries.)

It’s interesting to compare the
final text with the last draft of the summit conclusions (see full text here).
To make that comparison easy, I have indicated below what changed between the penultimate
and final versions of the text. (Underlined words were added to the final
version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and
geographically comprehensive approach to migration, based on solidarity and
responsibility. Following the decisions taken by the European Council last
April, concrete measures have been taken to prevent further loss of life at sea,
to find new ways of confronting smugglers and to intensify cooperation with
countries of origin and transit, while respecting the right to seek asylum. The
launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an
important contribution in this respect. Operational action to tackle the
traffickers and smugglers in accordance with international law is an essential
part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's
European Agenda on Migration, work should be taken forward on all dimensions of
a comprehensive and systemic approach.

The summit conclusions
in fact address much of the detail of the Agenda.

3. Wider efforts, including the
reinforcement of the management of the Union’s external borders, are required
to better contain the growing flows of illegal migration. Today, the European
Council focused on three key dimensions which must be advanced in parallel:
relocation/resettlement, return/readmission/reintegration and cooperation with
countries of origin and transit. The Council will regularly assess progress in
all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with
countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current
emergency situation and of our commitment to reinforce solidarity and
responsibility, and in line with its April decision in all its regards,
including paragraph 3, the European Council agreed on the following
interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search
and rescue missions in the Mediterranean. Odd that such missions dare not speak
their name in these latest conclusions.

a) the temporary and
exceptional relocation over two years from the frontline Member States
Italy and Greece to other Member States of 40.000 persons in clear need of
international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK
will not participate. The number of 40,000 matches the number in the Commission’s
proposal. So does the two-year time-frame, and the focus on Italy and Greece.
The reference to ‘persons in clear need of international protection’ suggests
that the focus will remain on Syrians and Eritreans (as the Commission
proposed), as refugee claims from these two nationalities have a very high
success rate.

b) the rapid adoption by the
Council of a Decision setting up a temporary and exceptional mechanism to
this effect; to that end, all Member States will agree by consensus by
the end of July on the distribution of such persons, reflecting the specific
situations of Member States;

There is a commitment to adopt a legally binding text, although
presumably its content will differ greatly from the Commission proposal, in
particular because many Member States dislike the idea (or the detail) of the
Commission’s proposals on distribution. The added agreement that the distribution
will be agreed by ‘consensus’ means effectively that the numbers accepted in
each Member State will be voluntary, although the Treaty calls for qualified
majority voting on this issue. The added reference to ‘specific situations’ is (according
to press briefings) intended to exempt Hungary and Bulgaria from obligations,
in light of the large number of asylum-seekers they currently receive.
Obviously it is hard to see how the legally binding target of 40,000
asylum-seekers can actually be met if Member States only have to volunteer to
take the relevant numbers. If a Decision with such an obligation is adopted but
the offers of admission fall short of 40,000, there could be an interesting
legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception
and first receptionstructured border zones and facilities in the
frontline Member States, with the active support of Member States' experts and
of EASO, Frontex and Europol to ensure the swift identification, registration
and fingerprinting of migrants ("hotspots"). This will allow to
determine those who need international protection and those who do not. The
Commission will draw up, in close cooperation with the hosting Member
States, a roadmap by July 2015 on the legal, financial and operational
aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has
been altered, perhaps because some perceived it as a form of quarantine. Frontex
is the EU borders agency, and the EASO is the EU asylum support agency. They
don’t have powers to fingerprint migrants etc as such, but they can help
coordinate Member States’ actions. On the other hand, it’s not clear why
Europol, the EU police agency, needs to be involved, and indeed the conclusions
seem to call for it to exceed its legal powers. It has a potential role in
investigating smugglers, but the conclusions refer only to its involvement in an
immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as
well as asylum-seekers, is a long standing EU law obligation in the Eurodac
Regulation, but frontline Member States have often been accused of not applying
it. If more such people are fingerprinted, then it will be easier to guarantee
their return from other Member States like the UK under the EU’s Dublin rules
on asylum responsibility, if those migrants travel to another Member State and
apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.

d) the immediate provision of
enhanced financial assistance to the frontline Member States to help alleviate
the costs of receiving and processing applications for international
protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member
States will participate including through multilateral and national schemes
in the resettling of 20.000 displaced persons in clear need of international
protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue,
which has already been adopted. Resettlement means that the persons
concerned are moved straight from refugee camps in countries like Lebanon or
Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have
fled to camps elsewhere within Syria. Legally speaking this group of people aren’t
‘refugees’ since they haven’t left their home country; international law refers
to people who have fled within their own countries but who still have great
protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’
once reaching the EU, however, since they would necessarily then have left
Syria. The UK has pledged a very small increase in the small numbers of
refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission
and reintegration policies for those not qualifying for protection are an
essential part of combating irregularillegal migration and will
help discourage people from risking their lives. All tools shall be mobilised
to promote readmission of irregularillegal migrants to countries
of origin and transit, building on the ideas presented by the Commission at the
Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address
objections that the word ‘illegal’ is the wrong term to use. There is a
footnote referring to the letter and it can be found via Google, but it is
hardly transparent not to attach it as an Annex to the Conclusions. It’s not
hyperlinked to the conclusions either. But you can follow this link for
the text of the Commission letter and discussion of it.

It must be noted that this section only
applies to people who do not qualify as refugees or for some other form
of protection. Some press stories had suggested, on the basis of leaked drafts
of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently
false: this section is clearly limited in scope (‘those not qualifying for
protection’) and the first section of the conclusions not only shows an
intention to relocate people needing protection within the EU but also
to bring more of them to the EU. Since a significant proportion of
migrants come from Syria and Eritrea, and a huge proportion of their asylum
claims are successful, anyone who claims that ‘the vast majority of people
crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level
dialogues with the main countries of origin of irregular migrants should be
launched by the High Representative as soon as possible, in close cooperation
with the Member States. The Council, together with the Commission, will prepare
a global package to support the negotiations with the third countries
concerned;

Most of the issues here are not foreign policy issues as such, so the
High Representative should only be discussing them in her role as the coordinator
of her colleagues in the Commission, not as foreign policy representative. So this
looks like an internal Commission power grab, although it’s probably also true
that she will come with more political authority than the Home Affairs
Commissioner. There may of course be a corresponding power struggle between
national foreign and interior ministries here.

b) the Commission will ensure
that readmission commitments are implemented effectively as soon as possible,
notably those under the Cotonou Agreement, and that ongoing negotiations on
readmission agreements are accelerated and concluded as soon as possible, while
new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco
and Tunisia. Talks with Algeria and China were approved years ago, but never
started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small
Pacific island States, although obviously the conclusions are referring only to
African states.

c) building on the
"more-for-more" principle, EU assistance and policies will be used to
create incentives for implementing existing readmission agreements and
concluding new ones. Commitments set out in trade agreements regarding the
temporary presence of persons for the provision of services should be used as
an incentive to conclude readmission agreements; development policy tools
should reinforce local capacity building, including for border control, asylum,
counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the
east and south-east by offering visa facilitation deals, and in some cases the
long-term prospect of a visa waiver. It has also offered visa facilitation to
Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t
want to offer visa facilitation to sub-Saharan African countries, hence the
quite new idea of offering them admission of service providers instead.
Interestingly, the market access aspects of service provision apply to all
Member States (ie, including the UK), although the immigration law aspects
(such as facilitated visas and permits just for this category of persons)
arguably fall within the scope of immigration law, where the UK opt-out
applies. The Commission’s migration agenda had referred to plans to propose
rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States,
unless some external money in the home affairs budgets can be used. This phrase
could also refer to national development policy budgets. The important question
is whether this is new money, or will be diverted from building schools or
hospitals, or aiding human rights defenders.

d) Member States will fully
implement the Return Directive, making full use of all measures it provides to
ensure the swift return of irregular migrants; return decisions issued by the
Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact
the Commission paper referred to above urges Member States to lock up irregular
migrants for as long as possible and to use derogations in that Directive, which
could justify limiting judicial review, and holding irregular migrants
(including families) in prisons, mixed in with the general prison population of
convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen
Information System (SIS), and the Commission plans to propose a legal
obligation that all of them will be. But introducing all return decisions
in the SIS is quite new, since not all return decisions result in entry bans. In
fact, this is the first new category of data to be added to the SIS since it
was established. It will take some time and money (as well as new EU
legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate
in the immigration-related aspects of the Schengen system. It does have access
to the separate Eurodac database, of people who applied for asylum or crossed
the borders irregularly in another Member State, although it can only access
this is those people then apply for asylum in the UK.

e) the Commission will set out by
July 2015 how Frontex will bring immediate support to frontline States on
return. The Commission has announced its intention to propose to amend the
Frontex Regulation to strengthen the role of Frontex, notably so that it can
initiate return missions;

The Commission paper also wants to give Frontex a role in going to
third countries and arranging return flights, and in expelling people from a
single Member State. The last set of amendments to the Frontex Regulation in
2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one
airline you never want to travel on – is coming?

f) in order to accelerate the
treatment of asylum applications, the Commission will set out by July 2015
measures to be taken to use EASO to coordinate the implementation of the
"safe country of origin" provisions in the Asylum Procedures
Directive. The Commission has indicated its intention to strengthen the
"safe country of origin" provisions in the Asylum Procedures
Directive, including the possible establishment of a common EU list of safe
countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum
applications, but only give guidance. As for the legislative proposal, the
Council tried to agree on a common list of safe countries of origin in 2005,
but failed epically. It’s not so problematic to include countries where the
failure rate is 99%, but becomes difficult to include countries where even 10%
or 20% of applications are successful – since that is a lot of people whose
claims won’t be adequately assessed.

g) adequate means will rapidly be
made available in support of an effective EU return policy; furthermore, the
Commission is invited to make proposals in this respect in the context of the
2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks
as if the ‘European Return programme’ is simply going to be an official name
for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests
that it was a failure on immigration issues, because Member States wouldn’t
agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit
conclusions still refer to adopting a binding measure requiring the relocation
of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s
not much point quibbling about exactly how they did it. However, the
replacement of quotas by voluntary offers makes it less likely that this number
will be achieved, and in that case the Council might decide not to adopt the Decision
after all.

Having said that, even if the
number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that
will contribute to reducing the pressure on Greece and Italy. It will be
significantly more than the piddling number of people relocated in the past. The
very existence of this commitment is an implicit admission that the Dublin
system is a failure. And the commitment to resettle 20,000 people is a bigger
contribution than the EU has made before in that context too.

All this is counterbalanced by
the decisions on return and readmission. It seems that there is a quid-pro-quo
between a more generous policy on asylum and a more restrictive policy on
irregular migration. Certainly this part of the conclusions shows the
importance of implementation of EU law by the Member States. The Commission has
committed itself to encouraging Member States to apply the Directive as
restrictively as possible, so it will fall to NGOs and migrants’ legal advisers
to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that
we do it’ is not in any way a sufficient legal reason to lock up families
together with convicted prisoners, while limiting judicial review. Rather, any
Member State wanting to apply exceptions from detention standards in the
Returns Directive has to show that an ‘exceptionally large number of
third-country nationals to be returned places an unforeseen heavy burden on the
capacity of the detention facilities of a Member State or on its administrative
or judicial staff’, presumably separately (ie it’s possible that the facilities
are overburdened but the judges aren’t, or vice versa). It must also end the
derogation as soon as conditions have changed, and also inform the Commission.
CJEU case law (Kamberaj)
suggests, by analogy, that the decision to lower detention standards is invalid
unless that latter procedural requirement is fulfilled. There’s a good argument that derogation clause
is itself invalid, as a breach of the Charter rights to family life, access to
court and the rights of the child. At the very least it must be interpreted in light
of those Charter rights, and the similar protections set out in Article 5 of
that Directive.

Sunday, 28 June 2015

A Greek referendum on whether to accept its creditors’ offer is currently scheduled
for next week. It’s not clear at this point whether the Greek voters’ refusal
to accept the offer would necessarily lead to Greece leaving the EU or EMU, or
at least defaulting on its debts. In fact, it is not clear what would happen if
Greek voters decided to accept the
offer, since it was still under the process of negotiation when the referendum
was announced, and may no longer be on the table at the time of the referendum.

However, since a wide range of outcomes are possible, it’s useful at this
stage to look at the legal framework for departure from economic and monetary union (EMU) – and in particular
whether Greece would have to leave the EU if it left the single currency. (See also my previous blog posts, before and after
the last Greek election, and Ioannis Glinavos’ recent analysis of whether Greece could be forced out of the euro).

The starting point is that the EU Treaties contain detailed rules on
signing up to the euro, which apply to every Member State except Denmark and
the UK. Those countries have special protocols giving them an opt-out from the
obligation to join EMU that applies to all other Member States. (I’ll say that again,
more clearly, for the benefit of those who claim otherwise: there is absolutely no way that the UK
can be required to sign up to the single currency. That would not
change in any way if British voters decided that the UK should stay in the EU).

But there are no explicit rules whatsoever on a Member State leaving the
euro, either of its own volition or unwillingly, at the behest of other Member
States and/or the European Central Bank (ECB). There’s an obvious
reason for this: the drafters of the Maastricht Treaty wanted to ensure that
monetary union went ahead, and express rules on leaving EMU would have
destabilised it from the outset. Put simply, legally speaking, Greece can’t directly
jump or be pushed from the single currency.

In practice, though, its continued existence in the single currency
could be made very difficult, as Ioannis Glinavos pointed out, either by the
ECB restricting or ending emergency assistance (ELA) to Greece, or by the ECB
limiting or removing Greek access to payment systems. It’s possible that any
such moves would be legally challenged by the Greek government, and perhaps by
other litigants too. It could be argued that they are in breach of EU monetary
law as such, and/or that they breach an implied rule that Member States cannot
be forced out of monetary union.

But let’s imagine that some sequence of events leads to Greek departure
from the official legal framework for EMU nonetheless. This could lead to the fully-fledged
introduction of a national currency (the ‘New Drachma’, or somesuch). It could
instead lead to some informal link with the single currency – for instance a
Greek ‘version’ of the euro, or the use of the euro as Greek’s official currency
in practice without participating in the legal framework of EMU. Several countries
outside the EU (such as Montenegro) take the latter approach. None of these
actions are legal (for a Member State) as a matter of EU law.

For that matter, the less extreme possibility of Greece defaulting on Greek
debts without leaving EMU (if that were feasible in practice) is not provided
for in the Treaties either. Moreover, other Member States and the EU institutions
are arguably legally obliged to refuse
debt relief for Greece, in accordance with the Treaties’ no bail-out rule: as
the CJEU said in Pringle, this
rule allows Member States to loan money to Greece in return for conditions and
an appropriate rate of interest. But they cannot simply assume responsibility for
Greek government debts. Forgiving those debts would have the de facto result of assuming them –
although it might be possibly argued that the letter (but surely not the
spirit) of EMU law would allow this as long as the Greek debts were not
formally transferred to the EU institutions or Member States. It might also be
argued that a Greek default on such debt would be a situation of force majeure, which could be accepted
by creditors without this amounting to a breach of the no bail-out rule.

However, the no bail-out rule does not apply to the private sector,
which explains the ‘haircuts’ already imposed on private banks, or to
international bodies or third States. So Greece could default on its loans to
the IMF without infringing the no bail-out rule (although that would surely
breach some other legal rule). Thanks to the gods of irony, the IMF is the biggest
supporter of Greek debt relief. And equally, without infringing that rule, Greece
could refuse to pay back any loans that Putin might be foolish enough to give
it.

Of course, the reason we got to this position in the first place was a
series of legal breaches: Greece joined the single currency on the basis of allegedly inaccurate economic data (for the debate on that issue, see here), and was not punished (as EU law provides for) when it
started to run debts and deficits well above the legal limits of EU law.

So if Greece does leave the EMU framework, and/or default on its debts
in violation of EU law, is it obliged to leave the EU, as some have suggested?
On the face of it, it’s certainly illegal for a Member State to leave EMU unless
it also leaves the EU. But having said that, there would still be no legal obligation for Greece to leave
the EU if it defaulted or left EMU.

Why is that? The main legal reason is that the Treaties have a specific
legal regime on withdrawing from the EU: Article 50 TEU, as discussed in detail
here. Article 50 says that a Member State ‘may decide to withdraw
from the Union, in accordance with its own constitutional requirements’.
This is manifestly a voluntary choice.
There are no rules in the Treaty stating that a Member State ‘shall’ withdraw
from the Union in any particular circumstances.

Nor is it possible to throw a Member State out. Article 7 TEU allows a
Member State to be suspended for breaching key principles such as human rights,
democracy and the rule of law. But there is no provision allowing a Member
State to be fully expelled from the Union against its will.

So implicitly but necessarily, the Treaties rule out any expulsion from the EU and any requirement to leave it,
in any circumstances. But the
Treaty drafters didn’t provide for States to leave EMU and/or default on debts
either. If those States can’t be forced to leave the EU in such circumstances,
what is the legal way forward?

Solutions to the tragedy

Classical Greek tragedies often ended with a ‘deus ex machina’ (‘god out
of the box’). The playwright had manoeuvred the characters into an impossible
situation, and the only way to resolve the plot was by the introduction of a
radically new plot element – a god or goddess who could use his or her divine
powers to resolve all of the problems which the characters faced. The normal
rules of narrative are suspended.

In my view, this is where we stand with Greek participation in the EU’s
single currency. Whether or not Greece stays in EMU, a new approach to the legal framework is necessary to try and
address the Greek position.

I see four main possibilities. First of all, the Treaties could be amended to try to regulate the situation,
if necessary with some degree of retroactivity. There could, for instance, be a
new general power for the Eurozone States in the Council and/or the European
Council to adopt measures to address the legal consequences of Greece departing
EMU. Legally, this is the tidiest solution; but politically, it’s the most
difficult one, since the Greek issues would get bound up with the British ones.
It’s possible that the Treaty amendment process would fail due to issues
related to Greece, rather than the UK – or the other way around.

Secondly, it could be argued that the implied powers of the EU (most obviously, Article 352 of the
TFEU) could be used to address the situation. This is a difficult argument
since the Treaty drafters considered EMU to be ‘irrevocable’. However, the CJEU
has taken a generous approach to measures aimed at saving EMU that many people
believed were clearly ruled out: financial assistance in Pringle, and the ECB’s bond purchasing programme in Gauweiler (discussed by Alicia Hinarejos here). It
might equally take a generous approach to the legality of any measures aiming
to clean up the enormous mess that a ‘Grexit’ would make.

Thirdly, some Greek law-makers have suggested that the Greek debts might be illegal, on
the basis of a theory of ‘odious debts’ that violate human rights. As noted
above, though, the CJEU has insisted on the conditionality of financial
assistance, and it has also repeatedly refused to answer questions from national
courts about the legality of those conditions. So at first sight, it looks
difficult for this argument to succeed as a matter of EU law, although the Court
has not ruled on this issue as such yet.

Fourthly, there’s a novel argument that I haven’t seen suggested before:
Greek participation in the euro was
invalid in the first place, because of the allegedly inaccurate economic
statistics used at the time. The CJEU could declare in the same ruling that all
of the legal commitments relating to Greek participation in EMU in the past remain
legal, so as not to disturb legal certainty (there’s plenty of precedent for CJEU
rulings like that). There are two possible variations here: a) if Greece is
still participating in EMU, its participation must be retained for the same
reasons of legal certainty; or b) if Greece has left EMU, its departure is legal
because the original participation was invalid.

But in either case, a crucial exception to the ‘legal certainty’ rule
can justify debt relief for Greece. It’s arguable that due to the essential
illegality of the legal framework in which Greek debts were incurred, the no
bail-out rule did not fully apply, leaving the creditors and Greece free to
negotiate a realistic amount of debt relief. (True, the no bail-out rule does
apply to non-Eurozone States too; but Greece borrowed far more than it would
have done due to its illegal participation in the euro). If Greece has left the
euro already, it could in future benefit from the slightly different regime for
financial assistance to non-Eurozone States.

Although Greece would still be formally required to try to join the
single currency in future, the EU tends not to pressure countries (like Sweden)
which have no real intention of joining. Realistically, no one would pressure
it to join for a very long time.

All of these solutions provide, in one way or another, that ‘it was all a
dream’: either the debt or the euro participation never existed in the first
place, or the Treaty or EU legislation retroactively apply to address the
issues, or the Treaty means something quite different from what it was generally
thought to mean. It is always preferable to avoid such an approach to the law,
but it’s hard to see how any other type of solution could work in this case. Legally,
simply put: Greece allegedly should not have joined the euro; it should not have been
allowed to run up huge debts; it cannot leave EMU; and it cannot be forced to
leave the EU. Economically and politically: Greeks have suffered more than enough;
Greece can never pay its accumulated debts while taking austerity measures
which depress its economy; but taxpayers of other Eurozone States
understandably would like to see their money back.

These illegalities and economic and political conflicts cannot be resolved
within the current framework, so we need to revise it radically. Of the suggestions
considered here, the fourth solution has the most appeal: it is consistent not
only with the classical tradition of Greek tragedy, but disturbs the current
legal framework as little as possible while offering solutions (a fully legal
Grexit, effective debt relief) that aim to resolve the situation as best it can
be managed. It is impossible to find any solution that would satisfy every legitimate
demand, but in my view this approach is the least bad alternative.

Friday, 26 June 2015

Menelaos
Markakis, DPhil student at University of Oxford, Academy of Athens scholar

On 22 June 2015
the Presidents of the EU and Euro area institutions presented their report on ‘Completing
Europe’s Economic and Monetary Union’. The report provides a roadmap for
‘deepening’ and ‘completing’ the Economic and Monetary Union (EMU). Building on
the measures enacted to combat the crisis, the Five Presidents’ Report makes a
wealth of valuable suggestions for strengthening the EMU governance framework
and deepening economic integration in the Euro area. The EU Presidents
recommend that progress be made towards a genuine Economic Union, a Financial
Union, a Fiscal Union, and a Political Union.

An
overview of the proposed reforms

The proposed
reforms would be implemented in two consecutive stages. In the first stage (1
July 2015 – 30 June 2017), the EU institutions and Member States ‘would build
on existing instruments and make the best possible use of the existing
Treaties’ (p. 5). In the second stage (mid-2017 to 2025), ‘concrete measures of
a more far-reaching nature would be agreed to complete EMU’s economic and
institutional architecture’ (p. 5). What follows is perforce merely a general
indication of the content covered within the report.

(i)A genuine
Economic Union

As regards the
economic ‘pillar’ of the EMU, the Five Presidents’ Report recommends that each
Euro area Member State create a Competitiveness Authority which would be ‘in
charge of tracking performance and policies in the field of competitiveness’
(p. 7). The rationale behind this proposal is twofold. Such bodies ‘would help
to prevent economic divergence’ and ‘would increase ownership of the necessary
reforms at the national level’ (p. 7).

It is patently
clear that these Authorities are expected to boost economic convergence in the
Euro area, most notably in relation to policy areas which fall outside the EU’s
competence. These bodies would have a mandate to ‘assess whether wages are
evolving in line with productivity and compare with developments in other euro
area countries and in the main comparable trading partners’ (p. 8). Moreover,
‘these bodies could be mandated to assess progress made with economic reforms
to enhance competitiveness more generally’ (p. 8). The Five Presidents’ Report
further recommends that a Euro area system of Competitiveness Authorities be
created, in order to coordinate the actions of these Authorities on an annual
basis.

The report
seeks to link this proposed technique of policy co-ordination to already
existing forms of rules-based governance in the Euro area. The Commission is
expected to ‘take into account the outcome of this coordination … in particular
for … decisions to be taken under the Macroeconomic Imbalance Procedure (MIP),
including whether to recommend the activation of the Excessive Imbalance
Procedure’ (p. 8). In principle, Euro area Member States are and would remain
free to choose whether to follow the best practices in Europe. However, if they
choose not to, the Commission and Council might respond to such divergence by
subjecting the Member States concerned to the Excessive Imbalance Procedure. In
this connection, the presidents of the institutions explicitly recommend that
the corrective arm of the MIP be
used ‘forcefully’, in order to ‘encourage structural reforms’ (p. 8).
Furthermore, they do not shy away from adding that social partners ‘should use
the opinions of the Authorities as guidance during wage setting negotiations’
(p. 8).

At a later
stage, ‘the convergence process would be made more binding through a set of
commonly agreed benchmarks for convergence that could be given a legal nature’
(pp. 5 and 9). These binding standards would be laid down in EU legislation. In
some areas, this would lead to ‘further harmonisation’ (p. 9). In other areas,
‘it will mean finding country-specific solutions’ (p. 9). ‘Significant progress towards these standards
– and continued adherence to them once they are reached – would be among the
conditions for each euro area Member State to participate in a shock absorption
mechanism for the euro area’ (p. 5), which will be discussed below (iii).

It is not clear
which competence basis the EU institutions would use for the adoption of such
instruments. It might be the case that the Five Presidents’ proposals rest on
the implicit assumption that the EU Treaties will be amended before or during stage
two of this process. It might also be the case that the EU institutions plan to
make full use of Articles 114, 136, 153 and 352 TFEU and/or of the Treaty
provisions on enhanced cooperation.

In this
connection, the Constitutional Affairs Committee of the European Parliament has
proposed that binding
economic policy guidelines for the Euro area countries be adopted on the basis
of Article 136 TFEU (p. 10 para. 15). It has further called for ‘the dropping
of the restrictions under Article 136 TFEU’ and for ‘the upgrading of this
article into a general clause for the adoption of legal acts concerning the
coordination and setting of legally-binding minimum standards with regard to
economic, employment and social policy’ (p. 16 para. 73). This would give more
say to the European Parliament on Country-Specific Recommendations.

Moreover, it
should not escape our notice that ‘Country-Specific Recommendations would
continue to be used in this context’ (p. 9). Furthermore, the report suggests
that the MIP ‘be utilised as a tool … to foster reforms and monitor progress in
each euro area Member State towards these common standards’ (p. 9). As such, rules-based
and co-ordination based governance techniques would continue to ‘form “hybrid”
normative grids and accountability frameworks’ (Armstrong).

(ii)Towards a
Financial Union

As regards the
proposed Financial Union, the Five Presidents’ Report recommends that the
Banking Union be completed and that the Capital Markets Union be launched.
First, the report recommends the full transposition into national law of the Bank Resolution and Recovery Directive. It is recalled that, in the opinion of the
Commission, 11 Member States have not fully implemented the Directive into
national law. Second, the report argues that, before the Single Resolution Fund
(SRF) is sufficiently capitalised, an ‘adequate bridge financing mechanism’
should be created for banks that need to be orderly unwound (p. 11). Third, a
common backstop to the SRF should be implemented. In the opinion of the EU
Presidents, this could be achieved through a credit line from the European
Stability Mechanism (ESM) to the SRF (see p. 11). ‘In due course, the
effectiveness of the ESM’s direct bank recapitalisation instrument should be
reviewed, especially given the restrictive eligibility criteria currently
attached to it’ (p. 11). Fourth, the report recommends that a European Deposit
Insurance Scheme be launched. Fifth, it proposes strengthening macroprudential
supervision at EU level and ‘review[ing] the treatment of bank exposures to
sovereign debt, for example by setting large exposure limits’ (p. 12).

Building on the
Commission’s Green Paper on ‘Building a
Capital Market Union’, the report further proposes launching a Capital Markets
Union for all 28 EU Member States. This would ‘ensure more diversified
sources of finance’ and would ‘strengthen private sector risk-sharing across
countries’ (p. 12). However, financial integration carries risks with it,
because a problem in one country can rapidly spread to another. As such, the
Five Presidents’ Report recommends that financial supervision be strengthened
in the EU and that a single European capital markets supervisor be created (p.
12).

(iii)Towards a
Fiscal Union

As regards the
proposed fiscal union, the Five Presidents’ Report puts forward two proposals.
First, it recommends that an advisory European Fiscal Board be created. This
body would coordinate and complement the national fiscal councils that have
been set up in accordance with Regulation 473/2013.
The European Fiscal Board ‘would provide a public and independent assessment,
at European level, of how budgets – and their execution – perform against the
economic objectives and recommendations set out in the EU fiscal framework’ (p.
14), thereby adding extra pressure on national Executives and legislatures to
take EU fiscal rules seriously. ‘Such a European Fiscal Board should lead to
better compliance with the common fiscal rules, a more informed public debate,
and stronger coordination of national fiscal policies’ (p. 14).

Second, the
report proposes the creation of a fiscal stabilisation function for the Euro
area. Such a mechanism would enhance public risk-sharing in the Euro area (p.
4) and could build on the European Fund for Strategic Investments. However, it ‘should not lead to permanent transfers between
countries or to transfers in one direction only’ (p. 15). ‘It should also not
be conceived as a way to equalise incomes between Member States’ (p. 15).
Notably, this stabilisation function ‘should be developed within the
framework of the European Union’ (p. 15, emphasis added).

Democratic
Accountability, Legitimacy, and Institutional Reform

The discussion
thus far has focused on the economic reforms proposed by the presidents of the
EU institutions. The focus now shifts to proposed reforms for enhancing the
democratic credentials of the EMU. Save for the proposals for a more timely and
better-structured parliamentary debate during the European Semester (see p. 17),
it is hard to see how these proposals add anything to the already existing
‘six-pack’ and ‘two-pack’ arrangements for ‘institutional dialogue’. Be that as
it may, the added emphasis on the role of social partners and civil society, as
well as on consultation with EU-level social partners, should be readily
applauded (see p. 22).

There is a
strong focus on output legitimacy and on synergies between the European
and national parliaments. ‘After many years of crisis, governments and
institutions must demonstrate to citizens and markets that the euro area will
do more than just survive. They need to see that it will thrive’
(p. 5).

Moreover, the
report lays down a number of proposals for strengthening the EMU governance
framework. More specifically, the EU Presidents suggest that the various
treaties concluded outside the formal confines of the Lisbon Treaty be
incorporated into the EU Treaties and secondary legislation and that the
governance structure of the ESM be ‘fully integrated within the EU Treaties’
(p. 18). The report further suggests that a full-time presidency of the
Eurogroup be considered and proposes the creation of a Euro area treasury (see
p. 18). In the opinion of the authors of the report, ‘the world’s second
largest economy cannot be managed through rule-based cooperation alone’; ‘it
will need to shift from a system of rules and guidelines for national economic
policy-making to a system of further sovereignty sharing within common
institutions’ (p. 5). The division of labour between a Euro area and national
treasuries is not made clear.

Regrettably,
there is no elaboration of what accountability structures should be put in
place if a Euro area treasury or fiscal stabilisation function were to be
created. Likewise, there is no analysis of the desired accountability
mechanisms for the proposed Financial Union. To be sure, requiring the consent
of the European Parliament for the appointment of the Chair and the Vice-Chair
of the Supervisory Board was a major step forward (see Article 26(3) of Regulation 1024/2013). What
is more, there are no proposals for improving transparency in the workings of
the Eurogroup, whose role in economic governance has now been heightened. A
body actively seeking to foster economic convergence among Euro area countries
(see p. 9) should not operate behind closed doors.

Final remarks

There
will be no attempt to summarise the preceding argument. It is nonetheless worth
highlighting certain features that are of particular importance. First, since
‘all euro area Member States must participate in all Unions’ (p. 5), these
proposals would, if implemented, put the
idea of a multi-speed Euro area to
sleep. To be sure, it might still be the case that not all Euro area Member
States would meet the requirements to make use of the proposed shock absorption
mechanism. Second, the EU Presidents’ proposals would, if implemented, entail a
massive upward flow of power from the national to the EU/Euro area institutions
and bodies. Arguably, this should be matched by increased democratic controls
and robust accountability mechanisms. Third, it is particularly noteworthy that
the report notes that all members of the Euro area should gain from EMU
membership (p. 4). Spreading welfare gains across the Union and promoting
economic, social and territorial cohesion might require that more thought be
given to the EU’s regional and structural policies (see also the 1989 Delors
Report). Lastly, at least some of the proposed
reforms might require a Treaty amendment in order to be implemented, and
therefore the Prime Minister of the United Kingdom might get his chance to renegotiate
Britain’s relationship with the EU and to enshrine the desired precepts in
primary law.